AN APPEAL TO REASON

Well, after telling lawyers that they must obtain rulings on their objections filed in motions for summary judgment, I have to report that things have changed a bit with the filing of the California Supreme Court's opinion in Reid v. Google, 2010 WL 3034803 on August 5, 2010. In fact, my posting of August 2, 2010 was the last time I insisted that you do everything short of standing on your head to obtain a ruling on objections so as to avoid a waiver. For several years, we have been waiting for the Court to address this issue and now they have.

In Reid, an age discrimination and wrongful termination case, Google filed 31 pages of written objections to Reid's evidence in opposition to Google's motion for summary judgment. The trial court failed to rule on the objections, stating it was relying only "on competent and admissible evidence." The Court of Appeal concluded the trial court's failure to rule on the evidentiary objections did not waive those objections on appeal, finding that the filing of written evidentiary objections before the summary judgment hearing was sufficient to preserve the objections.

The California Supreme Court held:

“We agree with the Court of Appeal’s conclusions. Regarding the waiver issue, the Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google’s filing of written evidentiary objections before the summary judgment hearing preserved them on appeal. (Code Civ. Proc., § 437c, subds. (b)(5), (3).) After a party objects to evidence, the trial court must then rule on those objections. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal."

(Opn., pg. 2.)

The Court further found that trial courts are required to consider all admissible evidence and the rules of waiver do not apply in summary judgment proceedings. California Rules of Court rule 3.1352 covers how objections can be made: either in writing pursuant to rule 3.1354, or by making arrangements to have a court reporter present at the hearing. Rule 3.1354 also requires that a party submitting written objections must also submit a proposed order, which would allow the trial court to indicate whether it was sustaining and overruling each objection. Thus, objections are deemed made "at the hearing" for purposes of Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), thus avoiding a waiver. As a result, even if the trial court fails to rule on those objection, they are preserved for review on appeal.